Cite Unseen: How Neutral Citation and America's Law Schools Can Cure Our Strange Devotion to Bibliographical Orthodoxy and the Constriction of Open and Equal Access to the Law

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I. INTRODUCTION

There can be fewer subjects less inviting on their face than a discussion of legal bibliographical practice. Citation itself is neither scholarship nor analysis but is the mere act of recording a supporting source's location; (1) the quintessence of form with no intrinsic substance at all. It is the recorded source that matters, one would think, not its citation.

And yet citation plays a much more important role in the American legal system (2) than this modest description might lead one to believe. (3) Competence in legal citation is expected of the most junior attorneys, (4) and an ability to generate accurate citations is viewed as a proxy for a lawyer's attention to detail. (5) Some argue that correct citation "adds to the credibility of the author" (6) and that "[a]ttention to citation form ... will improve the reader's sense of reliability, credibility, and integrity when evaluating the worth of the document and the writer's professionalism." (7) Others note that "in our legal culture, attention to detail, even in citation form, is a sign of excellence." (8)

Courts have an ambivalent relationship with legal citation. On the one hand, more than a quarter of judges polled in a recent survey identified citation errors as a common problem in legal writing. (9) Many of those judges indicated that the absence of citation mistakes is one of the most important formatting elements in documents they review. (10) Judges are critical of practitioners (11) for not following proper citation form (12) and are willing to impose citation requirements for documents filed in their courts, (13) and many are unwilling to have citation requirements imposed on them, citing an invasion of judicial independence (14) or administrative inconvenience. (15)

But on the other hand, judges might be more tolerant about new citation formats than the data suggest. Two studies by Robert Berring and Kathleen Vanden Heuvel found that courts were more relaxed about allowing new citation formats than the researchers had anticipated, "requiring only that the citing party provide a copy of the printout to all parties." (16)

Orthodox legal citation has perhaps its most powerful effect on law students. Legal citation is typically taught to first-year law students by their legal writing teachers (17) and can take up a considerable part of the legal writing curriculum. (18) Even where class time is not taken up by citation study, products such as the Interactive Citation Workstation, published by LexisNexis and available online as part of a law student's subscription to the LexisNexis Total Research System, can occupy a considerable amount of time for a first-year law student. (19) And this is time obtained at a cost. Robert Berring has observed that The Bluebook, (20) for many years the only legal citation manual and still self-styled as "the definitive style guide for legal citation in the United States," (21) "has inflicted more pain on more law students than any other publication in legal history." (22)

But the pain involved in learning how to cite legal information correctly (23) has its perceived rewards. Mastery of legal citation is, for many students, the passport to membership in the elite world of law reviews. (24) And because participation in a law review or journal during law school is often thought of as a stepping-stone to an employment offer from a desirable legal employer after graduation from law school, (25) the pressure to become a member of law review is intense. (26)

Legal citation also plays a significant role in the institutional battle over the status and power of legal research and writing teachers. Scholars have used revolutionary rhetoric to describe the significance of the Association of Legal Writing Director's decision to offer an alternative to The Bluebook, (27) and the conflict between, on the one hand, doctrinal (28) faculty and legal writing faculty and, on the other hand, legal writing faculty and students, has been explored in the scholarly literature. …